Cline v. Brooks

Sherwood, C. J. The plaintiff had a claim allowed against the estate of Cline, in the Cass Common Pleas, on the 21st day of February, 1873, and on the same day the administrator appealed to the Circuit Court, but the trans-script was not filed in the latter court until the 26th of March next thereafter. On the 7th day of July, 1873, the Circuit Court, on the ground that no bill of exceptions, &c., had been filed in the lower court, and no assignment of errors, &c., in that court, dismissed the appeal. After vainly endeavoring to reinstate the cause, the defendant comes here by writ of error. [63] mentsubseiluent enact~ 2. appeal, when perfected. . The court erred in dismissing the appeal; and the cases of Schulenburg v. Evans, admr. (59 Mo. 41), and McCraw v. Hubble, admr. (61 Mo. 107), are without here, for the reason: section 23 of the act approved March 4th, 1867, (laws 1867, p. 88) made no distinction between appeals taken, or writs of error sued out, whether relating to probate or other matters; and so it was ruled in Schulenburg v. Evans, admr., supra; but that section was greatly modified by the amendatory act which took effect March 17th, 1873, the 19th section of which provides that in “probate cases, * * * where the appeal shall be perfected, the Circuit Court shall proceed to try the case novo.” And long before the appeal was perfected, the act of March 17th took effect, making it imperative on the Circuit Court to try the cause anew. And it makes no difference, in consequence of the amendatory act referred to, -whether exceptions were saved in the Common Pleas Court or not. Because of the error committed in dismissing the appeal, the judgment is reversed and the cause remanded. All concur. Reversed.-